NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION File Na me: 12a0292n.06 No. 10-2277 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT DOUGLAS A. BEN I T, Petitioner-Appellant,

v. UNI TED STATES OF AMERI CA, Respondent-Appe llee. ) ) ) ) ) ) ) ) ) ) ON APPEALFROM THE UNI TED STATES DI STRI CT COURT FOR THE E ASTERN DI STRI CT OF MI CHI GAN

OPI NI ON

BEFORE: COOK , WHITE , and DONALD, Circuit Judges.

P ER CURIAM

. Doug las A. Be nit appea ls the district court’s order denying his motion to

vacate, set aside, or

corr ect se ntence , filed under 28 U.S.C. § 2255. In 2008, pursuant to a plea ag ree ment, Be nit pleade d g uilty of mail fra ud, in violation of 18 U.S.C. § 1341, and bank fra ud, in violation of 18 U.S.C. § 1344. The fac ts underly ing his conviction, as rele vant to this appea l, are as follows. Fr om Marc h 1999 to J uly 2003, Be nit held an administrative pos ition at Ecorse P ublic Schools (“EPS”) in Ecorse , Michi gan . During t hat t ime, he was also the CEO of Coral T ec h nology , Inc. (“Cora l”). In his position at EPS, Be nit was responsible for administeri n g a $45 milli on bond fund to build new schools and to improve technolog y in the schools. He also soug ht fede ral funding for the school sy stem from the Universa l Service Administration Corporation (“U SAC”) throug h a prog ram known as “E-Rate,” which provided funding to sc hools to improve internet connec tivity

. Be nit use d his position with E PS toNo. 10-2277

Benit v. United States improperly direc t cer

tain funds from EPS and the E-Rate prog ram to Coral. He did not disclose his interest in Coral to either

EPS or USAC. The district court deter

mined that Be ni t ’s total offe nse level was 23, which included a six teen- level incre ase under USSG § 2B1.1( b)(1) bec au s e t h e amount of loss to the victims was betwee n $1 milli on and $2.5 milli on. Ba sed on the total offe nse leve l of 23 and a criminal history cate g ory of I , the district court deter mined that Be nit’s g uidelines rang e of imprisonment was 46 to 57 months on eac h count. I t sentenc ed him to concur rent prison terms of 46 months. Be nit did not appea l. In 2009, Be nit filed a § 2255 motion asser ting that his counsel rende red ineffe ctive assistance by g iving him incorre ct advice conce rning the proper leg al standard for deter mining restitution and for calc ulating the amount of loss for purposes of the sentenc ing g uidelines. Be nit also asser ted that the district court err ed in calc ulating the re s t i t u t ion amount and by imposing the six teen- level incre ase under USSG § 2B1.1(b)(1)

. The district court denied the motion and g rante d a cer tificate of appea lability on Be nit’s claim that his counsel rende red ineffe ctive assistance

. On appea l, Be nit argues that the district cour t erre d by denying his motion. In revie wing the denial of a § 2255 motion, “we apply a de novo sta

ndard of revie w t o the leg al issues and uphold the fac tual finding s of the district court unless they are clea rly err oneous.” United States v. Doyle , 6 3 1 F.3d 815, 817 (6th Cir. 2011). “To establish a claim of ineffe ctive assistance of counsel, a defe ndant must prove that his counsel’s perf ormanc e fell below an objective standard of rea sonablene ss and that this perf ormanc e prejudice d the defe ndant’s case .” Id. (interna l citations omitted). To show prejudice in the guilty -plea context, a defe ndant “must show that there

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Benit v. United States is a rea sonable probability that, but for counsel’s err ors, he would not have pleade d g uilty and would have insisted on g oing to tria l.” Hill v. Lockhart , 474 U.S. 52, 59 (1985). Be nit first argues that his counsel improperl y advised him conce rning the method of calc ulating the amount of loss f or purposes of USSG § 2B1.1( b)(1)

. He asser ts that counsel failed to advise him that the amount of loss was not equa l to Cora l’s g ross profits and that a ny loss must be offse t by the value of g oods and service s provided to the victims. He further asser ts that the victims suffe re d n o loss and that, had he been proper ly advised by counsel, he would not have

acc epted the ple a agree ment which included the six teen- level incr ease . The undisputed evide nce se t forth in the pre sentenc e re port established that C oral re tained

over $850,000 in E-Rate funds under a subcontrac t to install fiber- optic cable at EPS, despite the fac t that Coral perf

ormed no work o n t h e co n t ra ct. In addition, EPS paid Coral over $164,000 as a “matching amount” on the same contra ct. Those amounts, totaling over $1 milli o n , co n stitut ed losses under § 2B1.1( b)(1)

. See USSG § 2B1.1( b)(1) , cmt. n.3. Fur ther, as descr ibed in detail in the prese ntence repor

t, Be nit improperly d i rected the expenditure of $700,000 of E-Rate funds to the purcha se of two lear

ning laboratories known as “Multicenter s,” resulting in a loss of at least $540,000 to USAC. Be cause the evidenc e supported the six teen- level incre ase under § 2B1.1( b)(1) for causing a loss in excess of $1 milli on, Be nit cannot establish that counsel g ave him defic ient advice conce rning the calc ulation of loss or that reje cting the plea ag ree ment was likely to result in a lesser sentenc e. Be nit also argu es that counsel failed to proper ly advise him conce rning the method of calc ulating the amount of loss for purposes of deter minin g re s t i tution. He asser ts that counsel

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Benit v. United States

err oneously advised him that restitution was based on Coral’s g ross profits rathe r than the actua l loss to the victims. Benit ca

nnot establish, how ever , that he ag ree d to the restitution amount believing that it was based on Coral’s g ross profits, beca use the stipulated restitution amount of approximately $1.3 milli on was considera bly less than Coral’s g ross p ro fi t s o f o ver $2 milli on. Fur ther, Be nit cannot d em onstrate that he was prejudice d by counsel’s alleg edly err oneous advice beca use the stipulated restitution amount was less than the victims’ ac tual loss. Acc ording ly , we a ffirm the district c ourt’s orde r deny ing B enit’s § 2255 motion.

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